Opinion
CV176015346S
01-18-2019
Zbigniew ROZBICKI v. Chester LICHAJ et al.
UNPUBLISHED OPINION
OPINION
Shaban, J.
On April 23, 2017, the plaintiff, Zbigniew Rozbicki, filed a one-count breach of contract complaint against the defendants, Chester and Nicole Lichaj seeking to recover fees for his services as an attorney. The plaintiff alleges the following facts. The defendants retained the plaintiff to represent them in defense of a lawsuit concerning a right of way brought by David and Lori Welles (Welles suit). The plaintiff agreed to defend the defendants in the Welles suit for $ 250 per hour plus costs. The defendants were initially unsuccessful in the Welles suit after the trial court found in favor of the Welles. The defendants then agreed to retain the plaintiff at an hourly rate of $ 275 per hour plus costs to appeal the judgment to the Appellate Court. That appeal was successful. The Welles then filed a petition for certification to the Supreme Court, which was denied. As an accommodation to the defendants, the plaintiff had reduced his hourly fee of $ 275 to a fixed fee of $ 15, 000 for the appeal and a fixed fee of $ 7, 500 for the defense of the petition for certification to the Supreme Court. The plaintiff worked approximately 190 hours prior to the appeal, which resulted in him earning $ 47, 550 in attorneys fees plus $ 2, 541.24 in costs. Post appeal, pursuant to the parties’ agreement, the plaintiff was owed $ 20, 000 in attorneys fees plus $ 2, 994.72 in costs, for a total of $ 73, 085.96. The defendants made periodic payments totaling $ 18, 048.06 leaving a balance due of $ 55, 037.90.
The fee arrangement for the payment of the $ 15, 000 and $ 7, 500 contained in the "agreement" as described is laid out in paragraph 10 of the plaintiff’s complaint. However, the plaintiff alleges in paragraph 14 of the complaint that the defendants owed him a total of $ 20, 000 once the Welles suit was completed. It is unclear whether that is a mathematical error on the plaintiff’s part or the $ 20, 000 figure represents what the plaintiff claims the defendants still owed him after periodic payments were made.
Later, at plaintiff’s suggestion, the defendants retained attorney John Williams to represent them in prosecuting a vexatious litigation claim against attorney Michael J. Sconyers (Sconyers suit) to recover the attorneys fees the defendants had accrued in the Welles suit, plus treble damages. During the course of the Sconyers suit, the plaintiff assisted the defendants in presenting evidence of their damages, which resulted in the defendants knowing that the plaintiff claimed they owed him a total of $ 73, 085.96. The defendants ultimately failed in the prosecution of the Sconyers suit. The plaintiff then demanded payment from both defendants.
On September 1, 2017, the defendants filed an answer (# 115). In their first affirmative defense, which sounds in equitable estoppel, the defendants allege that during the course of the Sconyers suit, the plaintiff represented and maintained that the defendants owed him no more money and that the defendants reasonably relied on that to their detriment.
The defendants also allege four counterclaims, but these were revised in a later, operative pleading, which is discussed herein.
In their second affirmative defense of undue influence, the defendants allege that the plaintiff was Nicole Lichaj’s landlord from 1992 to 2001 and Chester Lichaj’s landlord from 1998 to 2001. The parties had a long-standing friendship and frequently attending social gatherings together. Plaintiff was the closing attorney for the defendants when they purchased their first two homes in 2001 and 2003. The defendants came to rely upon the plaintiff as a friend and trusted advisor, which relationship the plaintiff used, along with his experience practicing law, to convince the defendants to both appeal the Welles suit and to commence the Sconyers suit, which the defendants had no interest in doing. They allege the plaintiff’s ultimate goal was simply to force attorney Sconyers to pay a large judgment.
In their third affirmative defense, the defendants allege that the plaintiff has unclean hands in bringing his cause of action in that he used the defendants to settle a vendetta against attorney Sconyers that stemmed from his involvement in a case related to the administration of the probate estate of Kathleen Gisselbrecht (Gisselbrecht probate matter), who had been a long-time employee of the plaintiff. Attorney Sconyers represented many beneficiaries of the estate and filed motions on their behalf challenging the plaintiff’s administration of the estate, including seeking his removal as executor of the estate. The plaintiff filed a grievance complaint against attorney Sconyers relative to his representation of the beneficiaries. That complaint was dismissed.
The plaintiff then became the subject of a presentment complaint by the Office of the Chief Disciplinary Counsel on May 3, 2011 for a violation of the Rules of Professional Conduct, relative to his conduct and actions in the handling of the Gisselbrecht probate matter. As a result of the complaint, he was suspended from the practice of law on March 8, 2013. The defendants allege the plaintiff sought out counsel (attorney Williams) to pursue the Sconyers suit on behalf of the defendants to further plaintiff’s vendetta against attorney Sconyers. During the course of the Sconyers suit, and while he was suspended from the practice of law, the plaintiff purported to provide legal advice regarding the defendants’ interrogatory responses. The defendants were never made aware that the interrogatories submitted to them as part of the Sconyers suit were being signed under oath. They were, however, made aware that the plaintiff claimed to be owed $ 73, 085.96 despite his statement that this amount was what the Sconyers suit "was worth" and not what the defendants would owe if the Sconyers suit was unsuccessful.
In their fourth affirmative defense, which sounds in unjust enrichment, the defendants allege that a judgment for the plaintiff would unjustly enrich him because the plaintiff informed the defendants that they owed him no further payments.
On July 20, 2018, the defendants filed a revised counterclaim (# 147) against the plaintiff, which asserted four counterclaims. On November 13, 2018, the defendants filed a withdrawal in part (# 161), which withdrew their second and third revised counterclaims.
Because these claims have been withdrawn, the motion to strike as to the second and third revised counterclaims is moot and the court need not discuss the facts alleged therein.
In their first counterclaim, which alleges a claim of fraud against the plaintiff, the defendants incorporate the first two paragraphs of their first affirmative defense and then allege the following additional facts. The plaintiff intended to induce the defendants into pursuing the Sconyers suit for his own benefit by promising that the defendants owed him no more money, and, despite this promise, he knew at the time he made it that he would seek his unearned attorneys fees from the defendants if unsuccessful. The defendants relied upon the plaintiff’s representation and commenced the Sconyers suit to their detriment.
After incorporating the first nine paragraphs from their second affirmative defense and the first sixteen paragraphs from their third affirmative defense, the defendants allege the following additional facts in their fourth counterclaim, which alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA) General Statutes § 42-110a et seq. The plaintiff, as an attorney, was engaged in a trade and his actions constitute an unfair trade practice, which caused the defendants to suffer an ascertainable loss of money or property.
On July 9, 2018, the plaintiff moved to strike the defendants’ affirmative defenses (# 142) and filed a memorandum of law in support thereof (# 143). On July 12, 2018, the plaintiff filed a supplemental memorandum of law in support of his motion to strike the defendants’ affirmative defenses (# 144). On August 6, 2018, the defendants filed an objection to the plaintiff’s motion to strike the defendants’ affirmative defenses (# 149) and a memorandum of law in support thereof (# 150). On August 10, 2018, the plaintiff filed a motion to strike the defendants’ amended counterclaims and portions of the prayer for relief (# 152) as well as a memorandum of law in support thereof (# 153). On September 10, 2018, the defendants filed an objection to the plaintiff’s motion to strike their revised counterclaims (# 154) as well as a memorandum of law in support thereof (# 155). On October 24, 2018, the plaintiff filed a reply memorandum to the defendants’ objection to the plaintiff’s motion to strike the affirmative defenses (# 156) and to the defendants’ objection to the plaintiff’s motion to strike the amended counterclaims (# 157). The court heard oral argument on both motions at the November 5, 2018 short calendar.
STATEMENT OF LAW
Practice Book § 10-39(a) provides in relevant part that: "A motion to strike shall be used whenever any party wishes to contest ... (5) the legal sufficiency of any ... counterclaim or ... any part of [an] answer including any special defense contained therein." "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ... The fundamental purpose of a special defense ... is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway ... Whether facts must be specially pleaded depends on the nature of those facts in relation to the contested issues." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). "In ruling on a motion to strike, the trial court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). "If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991); see also Jolen, Inc. v. Brodie & Stone, PLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6053151-S (May 13, 2016, Kamp, J.) (62 Conn.L.Rptr. 343, 346 n.2) (one of plaintiff’s theories is sufficient to allow CUTPA claim to proceed, motion to strike is denied).
ANALYSIS
Motion to Strike # 142 First Affirmative Defense: Equitable Estoppel
The plaintiff moves to strike the defendants’ first affirmative defense on the ground that it is legally insufficient because: (1) equitable estoppel is not a valid affirmative defense to a breach of contract action; (2) the allegations are conclusory; and (3) the defendants have failed to allege facts that establish any legal relationship that gives rise to any duty or obligation. The defendants response is that their first affirmative defense is legally sufficient because they allege facts that meet both elements of equitable estoppel.
"Equitable estoppel is a doctrine that operates in many contexts to bar a party from asserting a right that it otherwise would have but for its own conduct." (Internal quotation marks omitted.) Coss v. Steward, 126 Conn.App. 30, 41, 10 A.3d 539 (2011). "There are two essential elements to estoppel: [1] the party [against whom it is asserted] must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and [2] the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist." (Internal quotation marks omitted.) Fischer v. Zollino, 303 Conn. 661, 668, 35 A.3d 270 (2012).
The plaintiff first contends that equitable estoppel is not a valid affirmative defense. This argument is without merit given the very clear pronouncement from our Appellate Court that equitable estoppel is a valid affirmative defense in many contexts. Coss v. Steward, supra, 126 Conn.App. 41.
The plaintiff next contends that the allegations in the defendants’ first affirmative defense are conclusory. The defendants first allege that "[d]uring the course of the [Sconyers suit], the [p]laintiff always maintained [that] the [d]efendants ... owed him no more money." The first element of equitable estoppel requires the defendant[s] to allege facts that show that the plaintiff did or said something that was intended or calculated to induce the defendants into believing a certain fact and that this belief was acted upon by the defendants. Fischer v. Zollino, supra, 303 Conn. 668. Reading this allegation broadly, the defendants allege facts that satisfy the first element of equitable estoppel. The defendants next allege that they "reasonably relied upon this representation to their detriment." The second element of equitable estoppel requires the pleader to allege facts that show that they changed their position or were prejudiced by the representation. Id. No facts are alleged in this special defense to show that the defendants had maintained a certain position with respect to the bringing of the "Sconyers suit" and that they had changed their position in reliance upon the plaintiff’s representation. Because the defendants’ first affirmative defense is legally insufficient as to the second element of equitable estoppel, the motion to strike that defense is granted.
Second Affirmative Defense: Undue Influence
The plaintiff moves to strike the defendants’ second affirmative defense on the ground it is legally insufficient because: (1) undue influence is not a valid affirmative defense; (2) the allegations are conclusory; (3) even if the allegations are not conclusory, the defendants have failed to allege facts showing a legal duty arises from their alleged friendship; and (4) if the court treats the second affirmative defense as one of duress, the defendants have failed to allege facts that are necessary to such an affirmative defense. The defendants argue that they have alleged facts that, if proven, establish that the parties had a long-term friendship and professional relationship, which the plaintiff used to convince the defendants to undertake actions that they would not otherwise have taken.
The plaintiff raised this argument in his reply memorandum. At least one appellate authority analyzes an undue influence special defense to a breach of contract action as one of duress. Noble v. White, 66 Conn.App. 54, 58-59, 783 A.2d 1145 (2001) (defendants claimed undue influence as special defense to installment agreement but Appellate Court treated special defense of undue influence as one of duress because trial court concluded that agreement was obtained under duress). The court, however, does not need to reach this argument.
"Undue influence is the exercise of sufficient control over a person, whose acts are brought into question, in an attempt to destroy his free agency and constrain him to do something other than he would do under normal control ... [T]here are four elements of undue influence: (1) a person who is subject to influence; (2) an opportunity to exert undue influence; (3) a disposition to exert undue influence; and (4) a result indicating undue influence ... Relevant factors include age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction ... consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth ... failure to provide for all of his children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties." (Citations omitted; internal quotation marks omitted.) Pickman v. Pickman, 6 Conn.App. 271, 275-76, 505 A.2d 4 (1986). Undue influence is appropriate to raise as a special defense in some instances. See Narowski v. Kichar, 181 Conn. 251, 253, 435 A.2d 32 (1980) (reversing grant of motion to strike undue influence special defense because it was appropriate for defendants to raise it to attack invalidity of deed in action for partition because only owner of real or personal property may partition property).
The plaintiff first argues that undue influence is not a proper affirmative defense. Our Supreme Court, however, has recognized that undue influence is a valid affirmative defense, at least in a partition claim where the procurement of valid title was at issue. See id. It is unclear whether undue influence may properly be alleged as an affirmative defense to a breach of contract action. The court lacks the authority to reach this argument, however, because although argued, it was not raised in the plaintiff’s motion to strike. Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
The plaintiff next argues that the facts alleged in the defendants’ second affirmative defense is conclusory. In it the defendants allege that the plaintiff was a landlord, friend, and attorney to each of them in the years leading up to the Welles suit and that the plaintiff "used his friendship and his experience practicing law to convince the [d]efendants to appeal the Welles [s]uit" and to "commence the Sconyers [s]uit" in spite of the fact the defendants "had no interest in doing so" but they "acquiesced to appeal ... the Welles [s]uit and ... [commence] ... the Sconyers [s]uit [due to] constant pressure and undue influence of the [p]laintiff." The defendants also allege that the plaintiff’s "ultimate goal" was to "fight Attorney Sconyers and try to force him to pay a large judgment."
The court is required to take all allegations as admitted and construe the allegations in the light most favorable to sustaining their legal sufficiency. Bouchard v. People’s Bank, supra, 219 Conn. 471. To that end, the defendants have alleged facts that meet the first three elements of undue influence. The defendants were the plaintiff’s clients and heeded the plaintiff’s legal advice with regard to the Welles and Sconyers suits. With respect to the first element, they were subject to influence because they were not lawyers and trusted the professional advice of their attorney who was also their personal friend. As to the second element, the plaintiff had an opportunity to exert undue influence over the defendants through two legal vehicles that he could use to "fight" attorney Sconyers: the Welles suit and the Sconyers suit. As to the third element, the plaintiff is alleged to have a disposition to exert undue influence over the defendants in that he wanted to "fight" attorney Sconyers and force him to pay a large judgment. As to the fourth and final element, facts that show a result indicating undue influence have been alleged. A result indicating undue influence must be one that would not have been taken under normal control. Pickman v. Pickman, supra, 6 Conn.App. 275. Here, the defendants allege that the plaintiff constantly pressured them to appeal the Welles suit and commence the Sconyers suit even though they had no interest in doing so and they eventually acquiesced only because of the pressure. Read broadly, it can be reasonably inferred that the defendants would not have appealed the Welles suit or commenced the Sconyers suit under normal circumstances. The allegations of undue influence are sufficient to constitute a special defense.
The plaintiff’s motion to strike the defendants’ second affirmative defense is denied.
Third Affirmative Defense: Unclean Hands
The plaintiff moves to strike the defendants’ third affirmative defense on the ground that it is legally insufficient because: (1) the doctrine of unclean hands is not a valid affirmative defense; (2) the allegations are conclusory; and (3) the facts alleged are not relevant to the matter in litigation. The defendants argue that the facts alleged are sufficient to establish a defense of unclean hands because every attorney has a duty to act in the best interests of their clients, regardless of his own interests, and his actions violated that duty.
A breach of contract action for damages is an action at law. See, e.g., Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326, 355 A.2d 299 (1974). The doctrine of unclean hands is an equitable defense. See Thompson v. Orcutt, 257 Conn. 301, 310, 777 A.2d 670 (2001). "It is ... well settled that equitable defenses ... may be raised in an action at law." Kerin v. Udolf; 165 Conn. 264, 269, 334 A.2d 434 (1973). "The doctrine of unclean hands exists to safeguard the integrity of the court ... The integrity of the court is no less worthy of protection in an action at law, than in actions in equity." (Citation omitted.) First Fairfield Funding, LLC v. Goldman, Superior Court, judicial district of New Haven, Docket No. CV-02-0465799-S (November 3, 2003, Thompson, J.) (35 Conn.L.Rptr. 726, 727).
"The doctrine [of unclean hands] generally applies [only] to the particular transaction under consideration, for the court will not go outside the case for the purpose of examining the conduct of the complainant in other matters or questioning his general character for fair dealing. The wrong must ... be in regard to the matter in litigation ... Though an obligation be indirectly connected with an illegal transaction, it will not thereby be barred from enforcement, if the plaintiff does not require the aid of the illegal transaction to make out his case ... In addition, the conduct alleged to be unclean must have been done directly against the interests of the party seeking to invoke the doctrine, rather than the interests of a third party." (Citations omitted; internal quotation marks omitted.) Thompson v. Orcutt, supra, 257 Conn. 310-11. Our Supreme Court has recognized that the doctrine of unclean hands "is not one of absolutes ... It is not a judicial straightjacket ... Because the doctrine is founded on public policy, [it] may be relaxed on that ground." (Citations omitted; internal quotation marks omitted.) Id., 314.
The doctrine of unclean hands "is a special defense which parties are required to specifically plead." Naugatuck v. Naugtauck Environmental Technologies, LLC, Superior Court, judicial district of Waterbury, Docket No. CV-13-6020906-S (June 25, 2014, Roche, J.) (58 Conn.L.Rptr. 439, 439), citing Kosinski v. Carr, 122 Conn.App. 203, 209 n.6, 962 A.2d 836 (2009). Some trial courts hold that "once pleaded, [the issue of] [w]hether the doctrine of unclean hands should or should not be applied must be determined by the trier [of fact] and cannot be determined on a motion to strike." (Emphasis in original; internal quotation marks omitted.) Imperial Coast, Inc. v. Nguyen, Superior Court, judicial district of Waterbury, Docket No. CV-14-6023786-S (October 2, 2014, Brazzel-Massaro, J.); see also Delbuono v. Clifford Development, Superior Court, judicial district of Waterbury, Docket No. CV-06-5002937-S (July 24, 2007, Upson, J.); First Fairfield Funding, LLC v. Goldman, supra, 35 Conn.L.Rptr. 727. This is because the application of the doctrine of unclean hands rests within the sound discretion of the trial court; Thompson v. Orcutt, supra, 257 Conn. 308; and the exercise of such discretion is necessarily based upon the facts found by the trier of fact. First Fairfield Funding, LLC v. Goldman, supra, 727.
The plaintiff first argues that the doctrine of unclean hands is, generally, not a valid affirmative defense. This argument is without merit because unclean hands is an equitable defense which may be raised in actions at law. Thompson v. Orcutt, supra, 257 Conn. 310; Kerin v. Udolf, supra, 165 Conn. 269.
The plaintiff next argues that the allegations in the third affirmative defense are conclusory. The defendants allege the following. "After the conclusion of the trial in the Welles suit, the defendants were prepared to concede and not pursue any further litigation. In fact, the defendants had been interested in settling ... prior to judgment but were talked out of it by the plaintiff." Further, "[t]he [p]laintiff took advantage of his relationship with the [d]efendants in order to convince them to pursue an appeal." He did so, partially by "promising that the [d]efendants would only have to pay him his costs without attorney[s] fees." The plaintiff convinced the defendants to retain attorney John Williams’ services to pursue the Sconyers suit, despite the defendants having no interest in pursuing such a claim. They did so "out of a sense of loyalty and friendship for the [p]laintiff who they believed had prosecuted an appeal on their behalf for limited costs." "At no point did the [p]laintiff inform the [d]efendants that their bill had skyrocketed to $ 73, 085.96. Instead he repeatedly assured them that they owed nothing more after their final payment of $ 4, 000 on November 12, 2013." The plaintiff, despite being suspended from the practice of law, "purported to provide legal advice to the [d]efendants regarding their interrogatories, requests for production, and requests for admission which were issued to them in the Sconyers [s]uit" but were "never made aware that they were signing the interrogatories under oath." By then the plaintiff claimed "to be owed $ 73, 085.96 for his services ... but were informed by [him] that this number was simply what the Sconyers [s]uit ‘was worth, ’ [and] not what they would owe the [p]laintiff ... if the Sconyers [s]uit was unsuccessful."
In pleading their third affirmative defense, the defendants have not merely alleged legal conclusions that the plaintiff has come to court with unclean hands. They have alleged facts that show the plaintiff promised the defendants they owed him no additional money for the Welles suit appeal and assured them of the same promise once presented with the $ 73, 085.96 figure. In addition, the defendants allege that the plaintiff unlawfully provided legal advice to them relative to their responses to the Sconyers suit interrogatories. In effect, they claim the plaintiff has attempted to collect funds which he had represented to the defendants were not due him. The doctrine of unclean hands is designed to specifically address conduct of this nature. Thompson v. Orcutt, supra, 257 Conn. 310-11. Despite the plaintiff’s argument to the contrary, the allegations in the third count are not conclusory.
Alternatively, alleging facts that are not legal conclusions preclude the granting of the present motion to strike because whether to apply the doctrine of unclean hands to a particular case rests within the sound discretion of the trial court. Thompson v. Orcutt, supra, 257 Conn. 310; Imperial Coast, Inc. v. Nguyen, supra, Superior Court, Docket No. CV-14-6023786-S; Delbuono v. Clifford Development, supra, Superior Court, Docket No. CV-06-5002937-S; First Fairfield Funding, LLC v. Goldman, supra, 35 Conn.L.Rptr. 727.
Lastly, the plaintiff argues that the allegations are irrelevant to the matter in litigation. Paragraphs 1 through 7 of the third affirmative defense allege facts relative to the plaintiff’s purported vendetta against attorney Sconyers, the Gisselbrecht probate matter, and a selection of quotations from a presentment complaint against the defendant. These allegations do not concern a matter in litigation that is illegal or fraudulent and stray beyond the present case by examining the general conduct of the plaintiff, which is impermissible. Thompson v. Orcutt, supra, 257 Conn. 310-11. But, as discussed above, some of the allegations do support the legal sufficiency of this affirmative defense, and, as such, the motion to strike the third affirmative defense must be denied. Bouchard v. People’s Bank, supra, 219 Conn. 471; Jolen, Inc. v. Brodie & Stone, PLC, supra, 62 Conn.L.Rptr. 346 n.2.
Fourth Affirmative Defense: Unjust Enrichment
The plaintiff moves to strike the defendants’ fourth affirmative defense on the ground that it is legally insufficient because: (1) unjust enrichment is not a valid affirmative defense; and (2) the allegations are conclusory. The defendants argue that their fourth affirmative defense is legally sufficient because the enforcement of any contract would be unconscionable by virtue of the plaintiff’s conduct.
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., supra, 274 Conn. 456. "[Our] Supreme Court [has] not actually [been] called [up]on to address the issue of whether unjust enrichment is appropriately pleaded as a special defense in either [ New York Annual Conference v. Fisher, 182 Conn. 272, 438 A.2d 62 (1980) or Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 686 A.2d 481 (1996) ], however ... [d]ecisions of the superior court have addressed this precise issue ... and have determined that the special defense of unjust enrichment is without merit because unjust enrichment is a cause of action which permits a recovery; it is not a defense [that] precludes recovery by another party." Weston v. Omnipoint Communications, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-NO-5876 (May 27, 2004, Cocco, J.) (37 Conn.L.Rptr. 926, 928). Based on that reasoning, the plaintiff’s motion to strike the defendants’ fourth affirmative defense is granted.
Motion To Strike # 152 First Counterclaim: Fraud
The plaintiff moves to strike the defendants’ first counterclaim on the ground that it is legally insufficient because it fails the transaction test set forth in Practice Book § 10-10. The defendants contend that their first counterclaim satisfies the transaction test because the facts alleged in the first counterclaim arose from the behavior of the plaintiff during the period of time fees were allegedly accruing that related to the defendants’ representation in the Welles suit. Practice Book § 10-10 provides, in relevant part: "In any action ... any defendant may file counterclaims against any plaintiff ... provided that each such counterclaim ... arises out of the transaction or one of the transactions which is the subject of the plaintiff’s complaint ..." "[A] counterclaim sounding in tort [may] be filed in a contract action if the subject-matter of the counterclaim is so connected with the matter in controversy under the original complaint that its consideration is necessary for a full determination of the rights of the parties ... Such joinder is proper when the same issues of fact and law are presented by the complaint and the [claim sought to be joined] and ... separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts." (Citations omitted; internal quotation marks omitted.) Northwestern Electric, Inc. v. Rozbicki, 6 Conn.App. 417, 426-27, 505 A.2d 750 (1986).
The defendants allege in their first counterclaim that the plaintiff "intended to induce the [d]efendants into pursuing the Sconyers [s]uit for his own benefit by promising that the [d]efendants owed him no more money" and "[d]espite this promise, he knew at the time he made it that if the Sconyers [s]uit was unsuccessful he would seek unearned attorney[s] fees from the [d]efendants." The plaintiff alleges facts that describe the work he undertook on behalf of the defendants as well as the fee arrangement he had with the defendants in paragraphs 1 through 18 of the complaint. The plaintiff also expounds upon the Sconyers suit in paragraphs 19 through 24 of the complaint. Specifically, in paragraph 21 of the complaint, the plaintiff alleges that he "agreed to cooperate with the [d]efendants and their counsel ... by documenting the[ir] ... cost of defense in the [Welles suit]. The [p]laintiff assisted the [d]efendants in presenting evidence of their damages as requested by Attorney Sconyers ... [which was] transmitted ... to Sconyers ... as evidence of damages in their lawsuit against Sconyers, et al. The [p]laintiff also sent a letter to attorney Williams on November 8, 2013 advising him of the defendants’ obligations for attorneys fees to be $ 67, 550." In paragraph 22 of the complaint, the plaintiff alleges that "[t]he [d]efendants represented to [attorney Williams], the Superior Court, and Sconyers ... that ... their damages and amounts owed to the [plaintiff were $ 73, 085.96] for attorneys fees and costs, was true, accurate, and owing to the [p]laintiff." The plaintiff alleges facts relative to the Sconyers suit, and, as such, the Sconyers suit is a transaction discussed in the complaint. The plaintiff, then, appears to allege facts relative to the Sconyers suit to prove the defendants had knowledge of the attorneys fees allegedly owed by them to the plaintiff. The defendants’ fraud counterclaim, as alleged, is sufficiently connected with the matter in controversy raised in the original complaint that its consideration is necessary for a full determination of the rights of the parties. There would be little additional effort in preparing this issue for trial. The plaintiff’s motion to strike the defendant’s first counterclaim is denied.
Fourth Counterclaim: CUTPA
The plaintiff moves to strike the defendants’ fourth counterclaim on the ground that it is legally insufficient because: (1) it fails the transaction test; and (2) billing a client for legal fees owed is not an unfair trade practice. The defendants respond, contending that the entrepreneurial aspects of the practice of law are covered by CUTPA and the collection of attorneys fees to be paid by a client qualify as entrepreneurial, which renders the fourth counterclaim legally sufficient.
Any defendant may file a counterclaim against any plaintiff so long as the counterclaim arises out of one of the transactions described in the plaintiff’s complaint. Practice Book § 10-10; see also Northwestern Electric, Inc. v. Rozbicki, supra, 6 Conn.App. 426-27.
General Statutes § 42-110b(a) provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Attorney conduct is within the purview of CUTPA, but only the entrepreneurial or commercial aspects of the profession are covered. Beverly Hills Concept, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). "The entrepreneurial or commercial aspects of lawyering have been chiefly identified as advertising, the solicitation of business, billing, and bill collection." (Emphasis added.) Leth v. Halloran & Sage, LLP, Superior Court, judicial district of Hartford, Docket No. CV-16-6068019-S (September 20, 2017, Noble, J.) (65 Conn.L.Rptr. 269, 270); see also Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 782, 802 A.2d 44 (2002) ("The ‘entrepreneurial’ exception is ... a well-defined set of activities-advertising and bill collection, for example"); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35-38, 699 A.2d 964 (1997) (expressly adopting reasoning from other courts that expressly holds that solicitation of business and billing fall within the entrepreneurial exception).
The defendants allege the following facts in their fourth counterclaim, which are incorporated by reference from the second and third affirmative defenses. The defendants relied "upon [the plaintiff] as a friend and trusted advisor." "After the conclusion of the trial [in] the Welles Suit, the [d]efendants were prepared to concede and not pursue any further litigation." Despite this, the plaintiff "used his friendship and his experience practicing law to convince the [d]efendants to appeal the Welles [s]uit, despite the fact that they had no interest in the appeal." He partially did so "by promising that the [d]efendants would only have to pay him his costs without attorney[s] fees." The plaintiff also "used his friendship and his experience practicing law to convince the [d]efendants to commence the Sconyers [s]uit, despite the fact they had no interest in doing so." The defendants pursued the Sconyers suit "out of a sense of loyalty and friendship for the [p]laintiff who they believed had prosecuted an appeal on their behalf for limited costs." "At no point did the [p]laintiff inform the [d]efendants that their bill had skyrocketed to $ 73, 085.96. Instead he repeatedly assured them that they owed nothing more after their final payment of $ 4, 000 on November 12, 2013." But the defendants "were made aware that the [p]laintiff was alleging to be owed $ 73, 085.96 for his services ... but were informed by [him] that this number was simply what the Sconyers [s]uit ‘was worth, ’ [and] not what they would owe the [p]laintiff ... if the Sconyers [s]uit was unsuccessful."
As discussed previously, the plaintiff alleges facts that discuss the Sconyers suit in paragraphs 19 through 24 of his complaint and, as such, the Sconyers suit is a transaction contained in the complaint. Further, little additional effort is required in presenting evidence of the plaintiff’s billing practices and representations relative to those practices, given that the plaintiff’s complaint is, essentially, an action to collect on an alleged sum owed as attorneys fees. As such, the defendants may allege counterclaims that arise out of it. The discussion of the Gisselbrecht probate matter, however, is not a transaction discussed in the plaintiff’s complaint. This is immaterial to the analysis of the legal sufficiency of the fourth counterclaim, however, because "[i]f any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, supra, 219 Conn. 471; Jolen, Inc. v. Brodie & Stone, PLC, supra, 62 Conn.L.Rptr. 346 n.2.
Next, the plaintiff argues that billing a client for fees owed is not an unfair trade practice. Our Supreme Court, however, has held that billing and billing practices are entrepreneurial aspects of the practice of law and, as such, an attorney’s billing practices are subject to liability under CUTPA. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 260 Conn. 782; Beverly Hills Concept, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 79; Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 35-38; Leth v. Halloran & Sage, LLP, supra, 65 Conn.L.Rptr. 270. The court finds such is the case here. The plaintiff’s motion to strike the defendants’ fourth counterclaim is denied.
Prayer for Relief
The plaintiff moves to strike paragraph 1 of the defendants’ prayer for relief because prejudgment interest is only recoverable in contract-related claims and claims for tortious injury to property. The defendants do not contest the legal insufficiency of paragraph 3 and claim, in their memorandum of law in support of their objection to the plaintiff’s motion to strike the amended counterclaim, that "[p]aragraph 3 of the claims for relief is for prejudgment interest, and the [d]efendants do not intend to pursue a claim for prejudgment interest." As such, plaintiff’s motion to strike paragraph 3 of the defendants’ prayer for relief is granted.
Paragraph 1 of the defendants’ prayer for relief seeks compensatory damages. Paragraph 3 of the defendants’ prayer for relief is for prejudgment interest. It will be assumed the plaintiff has made a scrivener’s error and moves to strike paragraph 3 of the defendants’ prayer for relief because the specific ground relied upon is that prejudgment interest is not recoverable on the counterclaims as alleged.
The plaintiff also moves to strike paragraphs 2 and 7 of the defendants’ prayer for relief on the ground that the fourth counterclaim is legally insufficient. At oral argument, the defendants conceded that the legal sufficiency of paragraphs 2 and 7 are dependent upon whether their fourth counterclaim is legally sufficient. Having found the fourth counterclaim legally sufficient as alleged, the plaintiff’s motion to strike paragraphs 2 and 7 of the defendants’ prayer for relief is denied.
CONCLUSION
For the foregoing reasons, the plaintiff’s motion to strike (# 142) the defendants’ first and fourth affirmative defenses is granted. The plaintiff’s motion to strike the second and third affirmative defense is denied. The plaintiff’s motion to strike (# 152) the defendant’s first and fourth counterclaim is denied. The motion to strike paragraphs 2 and 7 of the defendants’ prayer for relief is denied. The motion to strike paragraph 3 of the defendant’s prayer for relief is granted.
So ordered.